How Politics Shapes the Supreme Court


Ilya Somin argues that there’s been less flip-flopping on the individual mandate than liberals think. In fact, plenty of conservatives have opposed it all along. I think that’s considerably overstated, but I’ll let it slide. Instead, ponder this:

It is certainly true that courts would be unlikely to strike down a major federal law that enjoyed broad bipartisan support. In that sense, the opposition of the GOP and the willingness of 28 state governments to file lawsuits against it played a crucial role. One can say the same thing for almost every major case challenging the constitutionality of a prominent law. None of them are likely to succeed in the face of overwhelming bipartisan opposition.

A friend writes in to wonder what this means:

Note the emphasis on the party here — that played a “crucial role.” What is interesting here is the view that if one “party” lines up in full opposition and marshals its lieutenants in the states to press the issue in the courts, then any arguments upholding its constitutionality become much more suspect, the challenge more valid today — even if it was invalid yesterday. And courts should acknowledge that and be more willing to overturn the legislative decision due to the lack of bipartisanship. So, a 60-40 party-line vote in the Senate is less valid than a 51-50 vote as long as the 51 had a bipartisan mix and the state-generated challenges are a bipartisan mix as well. In each case, regardless of the merits. Or, more precisely, the merits don’t come into play until the politics says they come into play.

Given the Roberts Court’s rulings to date and certainly their public hearings, it’s hard not to agree with Somin’s point….It’s a frightening paradigm and one that moderates and Democrats would — and should — abhore. But just dismissing it as absurd doesn’t mean it isn’t firmly in place and in full operation now.

If this is right, it means that the Republican Party’s enthusiasm for unanimous obstruction is more than just a purely political strategy aimed at slowing legislation and appealing to its tea party base. It’s also targeted at supposedly nonpolitical actors like the Supreme Court, giving them an opportunity to overturn a “partisan” law rather than one that’s more broadly accepted. In theory, that shouldn’t matter, but in practice it does. It’s really a very nicely integrated strategy, much as Fox News has a nicely integrated strategy between its “news” shows and its “opinion” shows. It’s pretty smart.

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